Bombay High Court
Ramlal Son Of Badriprasad Mishra vs Madhaorao Son Of Chintaman Sontakke And ... on 2 April, 1987
Equivalent citations: 1987(3)BOMCR216
JUDGMENT M.S. Ratnaparkhi, J.
1. A private compliant was filed before the Judicial Magistrate, First Class, Pusad, by the present non-applicant Madhaorao Chintaman Sontakke, alleging that the present applicant (original accused) has committed offences punishable under sections 177, 192, 199, 200, 415, 417, 420, 463,464, 465 and 471 of the India Penal Code. The learned Magistrate on recording the verification of the complaint issued process under all the sections. The accused put in his appearance and moved that some of the offences cannot be taken cognizance of by the Court due to a legal bar created by section 195 of the Criminal Procedure Code. On hearing both the parties, the learned Magistrate passed the order that sections 177, 200, 463 and 471 be struck off from the process. This order passed by the learned Magistrate on 12-9-1984 has not been challenged. The learned Magistrate has now taken cognizance of the offences punishable under sections 192, 415, 417, 420, 463, 464 and 465 of the Indian Penal Code. This order was challenged before the Sessions Judge, Yavatmal, vide Criminal Revisions No. 99 of 1984. The learned Sessions Judge, by his order dated 20-11-1985, dismissed the revision and confirmed the order passed by the trial Court. It is this order which has been challenged before this Court in this application.
2. It was the contention raised on behalf of the applicant, that the learned Magistrate could not proceed with the trial for offence punishable under section 193 of the Indian Penal Code as that offence also was covered the bar created under section 195 of the Indian Penal Code and therefore, taking cognizance by the learned Magistrate was without jurisdiction. As far as the other offences are concerned, it was contended that the complaint, as it stands the verification recorded by the learned Magistrate and other material brought on record, do not establish any ingredient of these offences and therefore, it was wrong on the part of the learned Magistrate to issue process. It was also contended that taking cognizance of the offence was sheer abuse of the process of law. He, therefore, wanted the whole proceedings to be quashed.
3. It may be pointed out at the very outset that when the learned Magistrate practically upheld the bar of section 195, Criminal Procedure Code, he could not, in fact, proceed with the trial for the offence punishable under section 193 of the Indian Penal Code. Mr. Bobde, the learned Advocate for the non-applicant No. 1, fairly conceded before me that the learned Magistrate could not take cognizance of the offence punishable under section 193 (as defined in section 192 of the Indian Penal Code). This being the position of law, the order suffers and the applicant is entitled to that relief vis-a-vis.
4. The offences which, survive at this stage are the offences defined in section 415 and punishable under section 417 and 420 of the Indian Penal Code and the offences defined in sections 463 and 464 and made punishable under section 465 of the Indian Penal Code. The trial of these offences is pending before the trial Court and the applicant wants the whole trial and the proceedings to be quashed. It will, therefore, be necessary to examine the contentions of the rival parties in details.
5. To appreciate the real controversy, the following facts which give rise to the present complaint may be stated. The accused was appointed as a patwary by the Government. His read date of birth according to the complainant was 21-8-1920. In normal course he ought to have retired on 20-8-1978. However, it is contended, that he made representation to the Government that his date of birth is 1-7-1923 and not 21-8-1920. This representation was dishonest as well as fraudulent. By making this representation to the Government, which the accused knew to be false and fraudulent, he made the Government to allow him for nearabout three years more and thus, received full pay from the Government. The Government has been deprived of that much property due to the false and fraudulent representation of the accused. It is also contended that for supporting the fraudulent and dishonest representation, the accused caused the school registers to be fabricated and forged with dishonest intention and thus for securing the benefit for himself and wrongful loss to the Government, he has committed the offences stated above. It is not disputed at this stage that the accused retired from the Government service on 1-7-1981. It is some time in March 1982 that the present complaint came to be filed before the learned Magistrate.
6. Before proceeding further with the discussion, it should be proper to quote a couple of paragraphs from the complaint, which , according to Mr. Bobde constitute the offences. As far as the case of cheating is concerned, the complaint says :
"The accused with an intention to have monetary gain by getting the full pay for a longer period than he was entitled, has supplied the Government with the wrong information in respect of his age. This has been dishonestly and fraudulently done with a view to put the Government at loss and have illegal gain. He was born on 21-8-1920 and as per law, he was to complete 58 years on 20-8-78 and till that date only he was entitled to get full pay and onwards pension at lesser scale ; but he informed the Government that his birth date is 1-7-1923. Thus, making difference of about 3 years for which he put claim for service period upto 1-7-1981. The Government relying on this, has retired him on 1-7-81 while he was bound to be retired on 20-8-1978, if true facts have been informed to the Government. This amounts to cheating. In this form he has deceived the Government fraudulently and dishonestly inducing it to keep him in service for a longer period and pay him at a higher scale and thereby compelled the Government to omit to retire him on 20-8-78 which has causes damage and harm to the Government in the form of paying higher amount to him."
7. As far as the case of forging the documents is concerned, the complaint reads :
"Not only this, for this dishonest concealment of the true facts, he has made false representations to the School Authorities by removing or destroying the evidence of his real date of birth and making certain false representations arranged to get his name in the Register of K.D. High School as 1-7-1923. His representation misled the School Authorities to issue a certificate showing a wrong and false date of birth and this has been done fraudulently and dishonestly to support his claim before the Government to show that his date of birth was 1-7-1923. Further-more, he has used this document as showing true fact knowing fully well that the entries therein are not true and thus, he has committed the offences of fabrication of false evidence and forging of documents or creating circumstances for such wrongful acts."
It appears that this complaint was filed on 1-3-1982. The verification of the complaint came to be recorded on the same day. It will be necessary to reproduce the verification also because the learned Magistrate has issued a process ono the basis of the complaint as well as the verification. The verification reads as follows :
Teh iqlnyk jkgrks- vkjksih iqln rglhy e/;s iVokjhps dke djrk-s 1&7&81 jksth lsokfuo`r kyk- o vkrk isa'ku ?ksr vkgs- ;kph tUe&rkjh[k 21&8&1920 vkgs- ijarq R;kus vkiyh tUe&rkjh[k 1&7&1923 nk[kowu ljdkjyk /kksdk fnyk- dk;nsizek.ks 20&8&1978 jksth R;kps 58 o"kZ iw.kZ gksrs- ijarq tk.kwucwtwu vkiyk Qk;nk dj.;kdfjrk ljdkjyk /kksdk fnY;keqGs vankts 3 o"kZ tkLrh iw.kZ ixkj ?ksÅu ukSdjhoj jkfgyk o ljdkjiklwu tkLr ixkj ?ksryk- rlsp ds-Mh gk;Ldwy e/;s fyfOgx lVhZfQdsV yiowu rsFks rkj[kkph [kksVh uksan d:u ?ksryh] o v'kh /kksdkckth d:u [kksVh o;kph lVhZfQdsV d:u vkf.k R;k lVhZfQdsV e/;s o; [kksVh ekfgr vlwu R;kpk ljdkjleksj nk[kowu R;kpk nq:i;ksx dsyk-
8. The complaint and the verification read together lead one to the inference that the accused personally did all these things in between the period commencing from August 1978 and June 1981.
9. The complaint nowhere shows nor does the verification show that during this period the accused applied to the Government for changing his birth date. Nowhere can it be found either in the complaint or verification or any other material brought before the Court that the accused applied to the authorities of the K.D. High School, Pusad, for changing his date of birth in the School Leaving certificate. One circumstance has been brought on record to show that a register of births of the students maintained by K.D. High School was tampered inasmuch as the page was torn and it was affixed at the last page. There is absolutely nothing on record to show whether the accused is concerned with all this tampering. In fact, there being no evidence on record to show whether the accused moved the Government subsequent, for to his appointment changing his birth date, it was not at all necessary for the accused to apply for a change in the school register. If it were a fact that the accused had already submitted his date of birth to the authorities of the Government, when he was appointed and when the Government authorities had accepted his date of birth as correct, there was no necessity for the accused to go to the school and tamper with the document, because his purpose was already served when the Government had accepted the correctness of the date tendered by him. In fact, there is one letter issued under the signature of the Sub-Divisional Officer, Pusad, which shows that the accused was on leave till the middle of June, 1981. After he returned from leave, an order was passed by the Sub-Divisional Officer posting him to the place where he was. In the same order, the Sub-Divisional Officer directed that according to his service book, he was due to retire on 30th June, 1981 and accordingly, the orders for his relief were issued. This prima facie shows that the service record of the accused was already there with the Department and the service record shows that his birth date was 1-7-1923. There is not even a suggestion or not even a whisper that this date was changed subsequently while the accused was in service. If all these circumstances are taken together, I doubt whether the offence as defined in sections 415, 420, 463, and 464 can ever be madeout. All these definitions do go to show that the offence complained of must be specifically attributed to the accused so that he can be the author of the offence and the Court can proceed against him, according to law. We have nothing on record to show whether the accused made any false representation, whether he made the Government to accept the false representation and whether he falsified, fabricated and forged the so called documents maintained by the school authorities.
10. Admittedly, the appointment of the accused was made by the Government according to the Rules. He served till attaining the age of 58 years under the service contract. The Government accepted his date of birth as 1-7-1923, most probably when he entered into the service because there is nothing on record to show that his birth date was changed during his service tenure. The fact that he was superannuated was also a result of the service contract because the Rule which govern that contract, provides the superannuation at the age of 58 years. In these circumstance, it is well-nigh impossible to hold that there was any fraudulent representation, as contended by the complainant and similarly, the fabrication and forgery of documents, as contended. It is interesting to note at this stage that the accused serve with the Government till he attained the age of 58. He rendered not less that 25 or 30 years of service. Nowhere during this period had the Government any doubt about the correctness or truthfulness of the date of birth furnished by the accused. Had the Government any doubt regarding that date, the Government had the remedy under the Rules to enquire into the matter and if possible to proceed against the accused for disciplinary action. The learned Additional Pubic Prosecutor did not state before me that the Government had any doubt throughout his service period regarding the date of birth furnished by the accused. This is a case, therefore, governed by the contract of service. It is true that there is no personal contract. The Rules governing the services are applicable to the group and not to the individuals. But they are after all the service conditions which are, in fact, conditions of service. Under the circumstances, to impute criminality or penalty is a preposition which is well-nigh difficult to accept.
11. The conduct of the complainant also deserves to be seen at this stage. The complainant poses himself to be economically well placed in the area. He also poses to be a social worker interested in the welfare not only of the society but also of the Government. He has been tremendously pained to see that the accused has caused a monetary loss to the Government by drawing three years' full pay. If he were really interested, he could have taken up this cause before the accused retired from service. He knew not only the accused but the whole family. He knew when the accused was born, he had all the opportunities to contact different offices and to convince himself and get material regarding the date of birth of the accused. Even after the superannuation of the accused, this social worker sits quiet for about 9 months and then on a very fine morning comes before the Court with a criptic complaint that the accused has misrepresented to the Government regarding his date of birth. What is the basis for doing all this? Practically nil. What is the basis for alleging that the accused had falsfied and fabricated the registers of the K.D. High School? Practically nil, except for the so called of the tampering of the page in the register. He does not come before the Court and say that it was the accused and accused alone who had done this. He had no audiocity to come before the Court and say that the accused had tampered with these documents, misrepresented that Government and got his term extended. Everything has been kept as vague as it could be possibly done.
12. Mr. Sirpukar, the learned Advocate for the applicant, invited my attention to an order passed by this Court in Criminal Revision No. 200 of 1983 decided by this Court on 25-1-1984. In that case, the culprit was the brother of the present accused. The complainant was the same i.e. the present non-applicant No. 1. The present non-applicant No. 1 had an identical complaint even against the brother of the accused. His allegation was that the brother of the accused falsely represented the Government about his date of birth and thus induced the authorities, to extend his service period by some few years. A offence punishable under sections 417 and 420 of the Indian Penal Code was alleged against him. The trial Court issued the process. The Sessions Judge, in revisions, quashed that process. The order of the Sessions Judge was challenged before this Court and this Court held that no offence of cheating could be made out. The order quashing the issue of process was, therefore, confirmed by this Court. Though the case was quite different, the modus operandi can be relevant even in the present case and it shows the interest that the so called social worker is taking in the so called welfare of the society. It is altogether different if he means that the welfare of the Society and the State would be augumented only by filing criminal prosecutions either on flimsy or no grounds at all.
13. Mr. Bobde, the learned Advocate for the non-applicant No. 1, strenuously urged before me that the allegations in the complaint, coupled with the verification, do make out prima facie the ingredients of the offence of cheating. As is well known, cheating requires---(i) fraudulent or dishonest inducement and (ii) making the person so deceived (by inducement) to deliver any property. These are the two main ingredients. Section 420 contemplates initially the cheating (as defined in section 415 I.P.C.) with the consequence of inducing the person so deceived to deliver any property. Can we get any these ingredients by reading the complaint and the verification, as it stands. There is absolutely nothing to show that the accused gave any inducement. It is absolutely wrong to say that the accused fraudulently and dishonestly gave such inducement. To revert back to what I have already stated in the preceding paragraph, if the representation was made by the accused when he entered into the service regarding his date of birth, there is no question of any further representation to the Government for changing the date. The soul of the complaint rests in this part of the story namely, that the accused made a representation and as a result got his date of birth change. As far as this story is concerned, the record is absolutely blank. Similarly, regarding the so called fabrication or forgery, there is nothing to show that the accused was the author or that he had any concern with the tampering of the records which are, admittedly, in possession of the K.D. High School, Pusad, with which the accused has absolutely no concern. Mr. Bobde, relied on the third clause of section 462 of the Indian Penal Code when he urged that the accused himself may not be the author of the tampering But it was his contention that it was the accused who accused the record to be tampered. Even for establishing this, a prima facie evidence that the accused was concerned with tampering is necessary. We have it on record that the complainant did go to K.D. High School and did enquire from the authorities about the date of birth of the accused. The authorities showed him the registered which, in turn, showed that a page was torn and affixed to the last page. It was necessary for the complainant, posing himself to be keen social worker, to enquire whether the accused had any concern with the so called tampering. He does not do so . As soon as he sees the tampering, he at once jumps to the Court saying that it must be the accused and the accused alone who was interesting. I do not see that the Criminal Court would be justified in issuing the process on the basis of such material.
14. I have already reproduced those parts of the complaint on the basis of which the offence is alleged to have been committed. I have also reproduced the part of the verification which furnishes the material for the Magistrate to come to the conclusion whether the process should be issued or not. I have also adverted to the other material. It has also been sufficiently shown that the service of the accused was governed by the contract between him and the State. It may not be an individual contract but it was definitely a contract by status. It does not make any difference. Suffice it to say that under the contract the accused was under obligation to furnish the date of birth. He accordingly furnished the date of birth to the employer. The employer at no time had doubt about this date of birth. The superannuation which came in due course was based on that date of birth which was accepted by the employer as true. At least had the employer had any doubt or suspicion about the date of birth. The things have been done in the way they ought to have been done. I do not find any criminal intention emanating from either of these circumstances. It is not my intention to say that there can be no criminology attached to action emanating from service contract. But for establishing that something tangible and positive has to be established. Nothing like this has been established in this case.
15. Mr. Bodde, the learned Counsel for the non-applicant No. 1, strenuously urged before me that the inherent powers are to be sparingly used by the Court. I am quite aware of this limitations contained in section 482 of the Code of Criminal Procedure. I have not doubt in my mind that these powers are to be exercised very sparingly and in appropriate cases. Section 482 of the Criminal Procedure Code enables this Court to exercise the inherent powers when (i) it is necessary to give effect to any order under the Code, (ii) to prevent abuse of the process of any Court and (iii) secure the ends of justice. It is thus a duty enjoined upon this Court to see that the process of law is not abused. As long as there is no abuse of process of law, this Court would not normally interfere with the normal working. Here is a case where it smells of prima facie abuse of the process of law. For nothing the complainant wants the Court to proceed with the trial and that too when the service conditions have exhausted due to the superannuation of the accused. I do not find any co-relationship between the concept of justice and the way in which the justice is sought to be claimed in the present case. It is definitely and positively a case of the abuse of the process of law. The courts are already burdened with litigations and even the genuine seekers of justice have knocking the doors of the Court for their turn to come. I do not think that the Court would be justified in such a state of affairs to allow such litigation to proceed resulting not only the loss of valuable time of the Court but also the loss of money. Keeping in mind, the established principles that inherent powers are to be used very sparingly, I do think that the present case is one where that power needs to be exercised to stop the abuse of the process of Court.
16. The application is, therefore, allowed. The proceedings pending before the Judicial Magistrate, First Class, Pusad, in Criminal Case No. 740 of 1982 are hereby quashed.